Documents considered by the Committee on 22 February 2017 Contents

9Minamata Convention on Mercury: Ratification and implementation

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; further information required

Document details

(a) Proposal for a Council Decision on the conclusion of the Minamata Convention on Mercury; (b) Proposal for a Regulation of the European Parliament and of the Council on Mercury, and repealing Regulation (EC) No. 1102/2008

Legal base

(a) Article 192(1) TFEU in conjunction with Article 218(6)(a); consent; QMV (b) Articles 192(1) and 207 TFEU; ordinary legislative procedure; QMV

Department

Environment, Food and Rural Affairs

Document Numbers

(a) (37503), 5772/16 + ADD 1, COM(16) 42; (b) (37502), 5771/16 + ADDs 1–4, COM(16) 39

Summary and Committee’s conclusions

9.1The Minamata Convention is the main international legal framework for regulating emissions of mercury. The EU and 26 Member States (including the UK) are signatories to the Convention.

9.2These two documents address different aspects of the ratification process. The first is a draft Council Decision authorising the conclusion of the Convention by the EU, and the second is a draft Regulation which would address the gaps in existing EU legislation which need to be filled in order to enable ratification to take place.

9.3The Committee reported on these documents at its meetings of 9 March and 7 December 2016. While neither document raised any significant policy concerns, the Committee decided to press for more information on the outstanding legal issues. A scrutiny waiver was granted on 7 December, allowing the Government to support the proposals on condition that:

9.4In a letter of 24 January, the Parliamentary Under-Secretary of State, (Dr Thérèse Coffey), explained that a compromise text had been reached on the proposed Regulation, agreeing:

9.5On the draft Decision, she said that negotiations were continuing. She was silent on the Committee’s query as to the steps that the Government had taken to make it clear the EU action is limited to matters for which it has exclusive competence.

9.6In our response of 8 February, we retained both documents under scrutiny, re-iterating our request that the Government set out the steps it has taken or plans to take—whether by amendment or by minute statement—to make it clear that the EU action under the Decision is limited to matters for which it has exclusive competence.26

9.7The Minister has now written with a further update. She notes that the final version of the Regulation will be adopted formally by the Council after European Parliament agreement in March. On the Decision, she says that Ministers will be invited to approve it “in principle” at the 28 February Environment Council.

9.8The UK was successful, she says, in pressing for the Decision to be amended to include a Declaration of Competence in order to clarify the extent of the obligations being assumed by the EU. As the final wording in the Declaration could imply that the EU has exclusive competence over aspects of the Minamata Convention, the UK intends to enter a written statement.

9.9This statement, says the Minister, explicitly clarifies the UK’s understanding that the Declaration does not alter the distribution of competences between the EU and its Member States and does not imply that the EU has exclusive competence over any aspect of the Convention for which the EU and the Member States share competence.

9.10The Minister requests that the documents be released from scrutiny ahead of the 28 February Environment Council.

9.11On the Regulation, we note that a compromise was reached on the phase-out of dental amalgam in line with the UK’s negotiating objectives.

9.12Regarding the Council Decision, we commend the practice of attaching a declaration of competence in order to clarify the extent of the obligations being assumed by the EU. We also commend the practice of the UK providing clarity, in the form of a minute statement, as to the extent that the EU is exercising competence—where this is not clear in the text of the Decision authorising conclusion by the EU of the agreement in question. In each case it should be clear that the EU is only exercising exclusive and not shared competence. This supports the Government’s policy (with which we agree) that shared competence should be exercised by Member States.

9.13We are content to release both documents from scrutiny but would be grateful if the Minister would provide us with the actual text of the declaration and the minute statement.

Full details of the documents

(a) Proposal for a Council Decision on the conclusion of the Minamata Convention on Mercury: (37503), 5772/16 + ADD 1, COM(16) 42; (b) Proposal for a Regulation of the European Parliament and of the Council on Mercury, and repealing Regulation (EC) No. 1102/2008: (37502), 5771/16 + ADDs 1–4, COM(16) 39.

Background

9.14When the EU signed the Convention, it did so on the basis that the measures it introduced already existed to a very large extent within the EU by virtue of Regulation (EC) No. 1102/2008. However, to the extent that this is not the case, document (b)—which would repeal and re-enact that Regulation—seeks to address those gaps in a number of areas, notably the import of mercury; the export of certain mercury added-products; the use of mercury in certain manufacturing processes; new mercury uses in products and manufacturing processes; mercury use in artisanal small-scale gold mining (AGSM); and mercury use in dental amalgam.

9.15We commented in our Report of 9 March 2016 that, although we would be interested to see the impact assessment which the Government had promised, neither document appeared to raise any significant policy concerns. We noted, however, that there were legal issues and agreed with the Government’s intention that the Decision should be amended to clarify not only that the EU had adopted the required internal rules, but also that the EU was only assuming obligations under the Convention to the extent it had competence.

9.16In our Report of 7 December 2016, we granted a scrutiny waiver, on condition that (a) the Government indicate what steps (if any) it had taken to make clear the EU action is limited to matters for which it had exclusive competence—whether by amendment of the text or by minute statement, and (b) that it informed us of the eventual outcome of the discussions in the Council by the end of January 2017.

9.17We discussed the documents again at our meeting of 8 February 2017 and re-iterated our request for information on the Government’s attempts to secure clarity in terms of the EU’s exercise of competence.

Minister’s letter of 24 January 2017

9.18On the timing of negotiations, the Minister explained:

“Trilogue discussions between the European Parliament, Commission and Council were concluded on the Regulation in early December. A text which was provisionally acceptable to all parties has since been endorsed by the European Parliament Environment (ENVI) Committee. This text will now progress to a European Parliament plenary vote which would most likely be held in March before then returning to Council for formal adoption by Ministers. The Council Decision continues to move at a different pace to the Regulation, and therefore may not be agreed at the same Council.”

9.19Regarding the outcome of discussions on the Regulation, she says that the final text will have one single substantive legal base (Article 192(1), TFEU). On dental amalgam, she explained that an outcome had been secured which provided for flexibility in line with the Government’s objectives:

“The use of dental amalgam in bulk form will be prohibited from 1 January 2019 but it will still be possible to use it in pre-dosed encapsulated form. The use of dental amalgam for dental treatment of deciduous teeth, children under 15 years and pregnant or breastfeeding women will be prohibited from 1 July 2018 but practitioners may derogate on the ground of specific medical needs.

“On the question of phase out of dental amalgam, Member States are required, by 1 July 2019, to draw up national plans on the measures they intend to implement to phase down the use of dental amalgam. The Commission is invited to submit a report, and if appropriate, a legislative proposal, by 30 June 2020 regarding the feasibility of phase out of dental amalgam use in the long term, and preferably by 2030 but must respect Member States’ competence on health services and medical care as established in the Treaty, and take into account Member States’ national plans.”

9.20On the Decision, she said that negotiations were continuing and that the UK had been pressing for amendment of the text in line with the UK’s position.

Minister’s letter of 20 February 2017

9.21On the Regulation, the Minister explains that Jurist Linguists finalised the text on the 15 February and it is expected to be formally adopted by the Council after a European Parliament vote in March.

9.22On the Council Decision, she says that working party negotiations have now concluded and that the Environment Council will hold a vote on 28 February on whether to approve the Council Decision “in principle”. If the Decision is approved, she says, it would then need to be voted on by the European Parliament before returning to the Council for formal adoption.

9.23The Minister sets out the UK’s negotiating achievements in the following terms:

“The UK was successful in pressing for the Decision to be amended to include a Declaration of Competence in order to clarify the extent of the obligations being assumed by the EU. As the final wording in the Declaration could imply that the EU has exclusive competence over aspects of the Minamata Convention, the UK intends to enter a written statement.

“This statement explicitly clarifies our understanding that the Declaration does not alter the distribution of competences between the EU and its Member States and does not imply that the EU has exclusive competence over any aspect of the Convention for which the EU and the Member States share competence.”

9.24The Minister concludes:

“The UK fully supports the EU becoming a Party to the Minamata Convention and it is in our interests for the EU and other Member States to be able to participate fully in the first Conference of the Parties, which is expected to take place in September 2017. I therefore request that the Committee lifts scrutiny prior to the Environment Council vote on 28 February so that the UK can support the Council Decision.”

Previous Committee Reports

Twenty-second Report HC 71-xx (2016–17), chapter 4 (7 December 2016); Twenty-fifth Report HC 342-xxiv (2015–16), chapter 3 (9 March 2016).


26 Where the EU has exclusive competence only it can exercise that competence. Where competence is shared either the EU or the Member States can exercise competence, the choice is a political one.




24 February 2017